A.D. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2604-16T4

A.D.,

        Petitioner-Appellant,

v.

DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES,

        Respondent-Respondent,

and

CAPE MAY COUNTY BOARD OF
SOCIAL SERVICES,

     Respondent.
_________________________________________

              Submitted February 6, 2018 – Decided March 14, 2018

              Before Judges Reisner and Hoffman.

              On appeal from the Division of Medical
              Assistance and Health Services, Department of
              Human Services.

              SB2, Inc., attorneys for             appellant    (John
              Pendergast, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Lauren S. Kirk,
              Deputy Attorney General, on the brief).
PER CURIAM

      A.D. appeals from the January 10, 2017 final agency decision

of the Division of Medical Assistance and Health Services (the

Division), which adopted the initial decision of an administrative

law   judge    (ALJ)   affirming    the   denial    of    A.D.'s      Medicaid

application.    For the reasons that follow, we affirm.

                                     I

      We discern the following facts from the record.              On January

13,   2016,   A.D.'s   authorized   representative       filed    a   Medicaid

application on her behalf with the Cape May County Board of Social

Services (the Board).      Approximately one month later, the Board

sent a letter to A.D.'s health care facility representative 1

requesting    supplemental   information;     the   letter       stated    that

failure to send the requested information by February 25, 2016

would result in denial of A.D.'s Medicaid application.                      The

representative did not provide the requested information.

      On March 22, 2016, the Board sent the representative another

letter by regular mail and email.         That letter stated failure to

submit the requested information by March 28, 2016 would result



1
   A representative of Future Care Consultants completed A.D.'s
Medicaid application. The Board addressed its letters requesting
supplemental information to a representative for the health care
facility where A.D. resided.

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in denial of A.D.'s Medicaid application.     After not receiving the

requested information, the Board sent the representative a final

letter by regular mail and email, stating the requested information

was required by April 8, 2016 to avoid denial of A.D.'s Medicaid

application.

     After again not receiving the requested information, the

Board denied A.D.'s Medicaid application on June 24, 2016.               The

letter listed ten reasons for the denial.          The majority of those

reasons concerned the failure to provide the requested information

within the required time frame; however, the third reason indicated

the Board believed A.D. may have failed to disclose that she owned

property in Italy.

     A timely appeal was filed, and an ALJ conducted a hearing on

September 15, 2016.       During the hearing, the Board provided

explanations for the reasons listed in its denial of A.D.'s

Medicaid application.

     A.D.   produced    evidence   relating   to    the   alleged     Italy

property, and her son-in-law, V.I., testified on her behalf.               He

stated he performed an inquiry into the property using A.D.'s

family name because "in Italy[,] . . . when you get married the

wom[en] retain[] their last name [and] . . . do not change it to

the[ir] husband[s'] last name."        V.I. stated he discovered A.D.

did not own property in Italy; rather, A.D.'s brother owned the

                                   3                                A-2604-16T4
property, and when he sold it in 2008, he directed that "all of

[the] proceeds [from] the sale . . . go to [A.D.]."                A.D. also

admitted into evidence an Italian title search using A.D.'s family

name, birth date, province and town as search inquiries; the search

results indicated A.D. did not own property in Italy.

      The ALJ affirmed the denial of A.D.'s Medicaid application

in   an    initial    decision,   concluding    A.D.    "failed   to   provide

verification of resources in a timely matter."              Specifically, he

noted:

             Understanding       [A.D.'s]       authorized
             representative was experiencing difficulty
             complying, a thirty-one day extension was
             granted . . . . Another eleven-day extension
             was granted . . . . Finally, a seventy-seven
             day extension was permitted[] to . . . when
             the formal denial was issued. Even with these
             extensions, items remained unverified at the
             time of the eligibility denial.

On January 10, 2017, the Division adopted the ALJ's findings,

stating    A.D.'s     "Medicaid   application    was   properly   denied    for

failure to provide necessary verification."

                                       II

      On    appeal,    A.D.   argues   that     the    Division   denied    her

application because it believed she owned excess resources by

possessing property in Italy.          Therefore, she contends, the ALJ

erred in basing his decision on the timeliness of her submissions



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and   failing    to    address    evidence         she    presented    refuting   her

ownership of Italian property.

      "An administrative agency's decision will be upheld 'unless

there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record.'"                      R.S.

v. Div. of Med. Assistance & Health Servs., 
434 N.J. Super. 250,

261 (App. Div. 2014) (quoting Russo v. Bd. of Trs., Police &

Firemen's Ret. Sys., 
206 N.J. 14, 27 (2011)).                         "The burden of

demonstrating that the agency's action was arbitrary, capricious,

or    unreasonable      rests     upon       the     [party]     challenging      the

administrative action."          E.S. v. Div. of Med. Assistance & Health

Servs., 
412 N.J. Super. 340, 349 (App. Div. 2010) (alteration in

original) (quoting In re Arenas, 
385 N.J. Super. 440, 443-44 (App.

Div. 2006)).

      "Medicaid is a federally-created, state-implemented program

that provides 'medical assistance to the poor at the expense of

the public.'"      In re Estate of Brown, 
448 N.J. Super. 252, 256

(App. Div.) (quoting Estate of DeMartino v. Div. of Med. Assistance

& Health Servs., 
373 N.J. Super. 210, 217 (App. Div. 2004)),

certif. denied, 
230 N.J. 393 (2017).                To receive federal funding,

the   State     must   comply     with   all        the    federal     statutes   and

regulations.     Harris v. McRae, 
448 U.S. 297, 301 (1980).



                                         5                                   A-2604-16T4
       In New Jersey, the Division administers the Medicaid program

pursuant to the New Jersey Medical Assistance and Health Services

Act, 
N.J.S.A. 30:4D-1 to -19.5. The county welfare boards evaluate

eligibility.      "In order to be financially eligible, the applicant

must meet both income and resource standards."               Brown, 
448 N.J.

Super. at 257 (citing N.J.A.C. 10:71-3.15).

       The Division's regulations establish "policy and procedures

for the application process . . . ."          N.J.A.C. 10:71-2.2(b).          The

county welfare boards "exercise[] direct responsibility in the

application process to . . . receive applications . . . ."                    Id.

at 2.2(c).      They also "[a]ssure the prompt and accurate submission

of eligibility data . . . ."          Id. at 2.2(c)(5).       The regulations

establish time frames to process an application, with the "[d]ate

of   effective     disposition"    being    the   "effective    date     of   the

application" when the application has been approved.                   N.J.A.C.

10:71-2.3(b)(1).

       The   Division's    final   agency   decision   was    not     arbitrary,

capricious, or unreasonable.          The record reflects that the Board

sent    three    letters    stating    it   would   deny     A.D.'s     Medicaid

application if the Board did not receive the requested information

within provided time frames.          That information was not submitted

in a timely manner.        Nor does the record indicate why A.D. or her

representative could not have provided the Board, in a timely

                                       6                                 A-2604-16T4
manner, with the information later provided to the ALJ.   Moreover,

the record reflects that the Board requested, and did not receive,

information pertaining to matters other than the alleged Italian

property.

     Accordingly, the Division was correct to deny an application

that did not include the necessary documentation, particularly

because Medicaid constitutes a resource of last resort, reserved

for those who have a financial or medical need for assistance.

See N.E. v. Div. of Med. Assistance & Health Servs., 
399 N.J.

Super. 566, 572 (App. Div. 2008). We therefore affirm, but without

prejudice to A.D.'s right to reapply for Medicaid based on her

current circumstances, including the information produced at the

hearing before the ALJ.

     Affirmed.




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